In response, petitioner in essence asserted that the statute of limitations in
ORS 138.510(2) (1991) encompasses a "discovery" rule: "[t]he very earliest time a statute
of limitations can be construed to begin to run is when the injury that occurred is first
discovered by the injured party." Petitioner asserted that she did not discover her injury
from her attorney's allegedly inadequate advice until October 29, 1998, when an
immigration judge ordered her to be deported. She filed her petition for post-conviction
relief on November 2, 1999, less than two years after that order. In petitioner's view, the
time for filing her petition did not begin to run until her injury was discovered, at which
point the amended two-year statute of limitation was in effect. Thus, petitioner asserted,
her petition was timely. The post-conviction court denied the state's motion to dismiss
without explanation.

We agree with the state that Bartz v. State of Oregon, 314 Or 353, 356-60,
839 P2d 217 (1992), is largely controlling and that, under Bartz, the petition was time
barred. In Bartz, the petitioner was subject to the 120-day statute of limitations in ORS
138.510(2) (1989), but failed to file his petition until 145 days after his conviction
became final. 314 Or at 356. The petitioner asserted that he was entitled to file after the
limitations period because the trial court had not advised him of a possible statutory
defense to the charge and "he did not learn of the defense within 120 days after his
conviction became final." Id. at 357. The petitioner urged that, without his attorney's
advice as to the statutory defense, he could not reasonably have known of it within the
120-day statutory period and, thus, he was entitled to the benefit of the statutory "escape
clause." Id.

The Supreme Court disagreed. After examining the statute's text and its
legislative history, the court concluded that the exception for filing a late petition is to be
narrowly construed and limited to "extraordinary circumstances." Id. at 358-59. With
respect to the petitioner's claim in Bartz, the court concluded that it did not rise to that
level, reasoning:

"Given the specific nature of Bartz's claim, the issue becomes
whether the extant statutes pertaining to a particular criminal offense
constitute information that is reasonably available to a defendant convicted
of that offense. It is a basic assumption of the legal system that the
ordinary means by which the legislature publishes and makes available its
enactments are sufficient to inform persons of statutes that are relevant to
them.* * * Accordingly, we hold that the relevant statutes were reasonably
available to Bartz when his conviction became final. The failure of Bartz's
counsel to advise him of all available statutory defenses thus is not a
'ground[] for relief * * * which could not reasonably have been raised'
timely."

314 Or at 359-60 (emphasis added; citation omitted).

Relying on the analysis in Bartz, we reached the same conclusion in Brown
v. Baldwin, 131 Or App 356, 361, 885 P2d 707 (1994), rev den 320 Or 507 (1995).
There, the petitioner claimed that he could not reasonably have raised his post-conviction
claim within the statute of limitations because his attorney had affirmatively advised him
that he should wait until he had served about 36 months of his sentence before seeking
post-conviction relief. In rejecting his argument that he could avail himself of the "escape
clause," we refused to distinguish between an attorney's passive failure to inform a
defendant of particular legal information and an attorney's active misrepresentation
concerning the law:

"We recognize that counsel's alleged active misrepresentation in this
case differed from the passive failure to inform in Bartz. That fact,
however, is irrelevant to the Bartz analysis. Bartz makes it clear that the
applicability of the escape clause turns on whether the information existed
or was reasonably available to the petitioner, and not on whether the
petitioner's failure to seek the information was reasonable."

Brown, 131 Or App at 361 (emphasis in original).

Under Bartz and Brown, petitioner's claim does not fall within the exception
to the statute of limitations period applicable to post-conviction petitions. Petitioner's
complaint here is that her attorney failed to adequately inform her of the likely effects of
the immigration laws in effect at the time of her conviction. If the petitioner in Bartz was
presumed to know the law based on the public nature of legislative enactments, so must
petitioner in this case be presumed to have had knowledge of the relevant immigration
statutes and rules. As we said in Brown, the exception under ORS 138.510(2) (1991)
depends on whether the information existed or was reasonably available to petitioner to
discover her attorney's alleged inadequate advice, not on whether petitioner reasonably
was unaware of it. Here, the immigration laws and rules were available, even if petitioner
chose not to determine what they actually were. Petitioner's claim here does not differ
meaningfully from the petitioner's claim in Bartz. As in Bartz, the petition is time barred.
See also Long v. Armenakis

, 166 Or App 94, 103, 999 P2d 461, rev den 330 Or 361
(2000) (exception to statute of limitations does not apply to a person who forgoes legal
representation or advice and remains, by his own choice, ignorant of possible grounds for
seeking post-conviction relief).

On appeal, as below, petitioner's only real response to that analysis is to
assert that the statute of limitations in ORS 138.510 does not begin to run until a
petitioner discovers his or her "injury" due to her attorney's allegedly inadequate advice.
If petitioner were correct in that regard, and if she were further correct that the applicable
limitation period was two years, rather than 120 days, then petitioner's filing would have
been timely.

But we find no support for petitioner's proposed "discovery rule" in the text
of the applicable statutes. As the Supreme Court has recently reemphasized, a discovery
rule "'cannot be assumed, but must be found in the statute of limitations itself.'" Gladhart
v. Oregon Vineyard Supply Co., 332 Or 226, 230, 26 P3d 817 (2001) (quoting Huff v.
Great Western Seed Co., 322 Or 457, 462, 909 P2d 858 (1996)). Whether a particular
statute contains a discovery rule turns on the legislature's intent. Id. As for other issues
that turn on statutory interpretation, the legislature's intent is determined by following the
interpretive methodology of

The only exception under both versions of the statute is the one earlier
discussed--the so-called "escape clause," which permits a petition to be filed after the
specified limitation period if the petition asserts grounds for relief that "could not
reasonably have been raised in the original or amended petition." ORS 138.510(2)
(1991). Although that exception may encompass a form of a "discovery rule," it is not one
as broad as petitioner seeks. Rather, it permits a late petition only on grounds that "'could
conceivably have been made but could not reasonably have been expected,'" such as a
newly announced constitutional principle that was not only unsettled at the time the
petition had to be filed, but could not reasonably have been anticipated. See Long, 166 Or
App at 101. As already discussed, the exception does not encompass a claim based on a
petitioner's lack of actual awareness of current statutes or laws. SeeBartz, 314 Or at 359-60; Long, 166 Or App at 102; Brown, 131 Or App at 361.

Consequently, we need not decide whether petitioner's petition was subject
to a 120-day or a two-year time limitation period. Either way, the petition was time
barred because petitioner did not file it until more than seven years after her conviction
became final. Moreover, petitioner's late filing was not subject to the exception in ORS
138.510(2) (1991) for claims that could not reasonably have been raised within the
applicable time period. Finally, because the statute contains no "discovery rule," the
filing was not timely on the theory that petitioner did not "discover" that she would be
deported due to her conviction until 1998, when an immigration judge ordered her
deportation. For all of those reasons, the petition for post-conviction relief was untimely,
and the post-conviction court erred in denying the state's motion to dismiss it.

"(1) Except as otherwise provided in ORS 138.540, any person
convicted of a crime under the laws of this state may file a petition for post-conviction relief pursuant to ORS 138.510 to 138.680.

"(2) A petition pursuant to ORS 138.510 to 138.680 must be filed
within 120 days of the following, unless the court on hearing a subsequent
petition finds grounds for relief asserted which could not reasonably have
been raised in the original or amended petition:

"(a) If no appeal is taken, the date the judgment or order on the
conviction was entered in the register.

"(b) If an appeal is taken, the date the appeal is final in the Oregon
appellate courts."